Lawrence v Baker

[2013] NZHC 3504

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-007634 [2013] NZHC 3504

BETWEEN  P LAWRENCE Appellant

ANDF BAKER Respondent

Counsel:                  K A Muir for the Appellant

P J Stevenson for the Respondent

Date:  19 December 2013

COSTS JUDGMENT OF GILBERT J

This judgment was delivered by me on 19 December 2013 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:………………

LAWRENCE v BAKER [2013] NZHC 3504 [19 December 2013]

Introduction

[1]      In my judgment delivered on 12 September 2013, I expressed the provisional view that Mr Lawrence is entitled to 2B costs, having substantially succeeded on the appeal.  In the event that the parties could not agree, I directed that any application for costs should be made within 14 days and any response within 14 days thereafter.

[2]      The parties have been unable to agree the issue of costs and have recently filed  memoranda.    Mr  Lawrence  seeks  costs  on  a  2B  basis  with  an  uplift  of

50 per cent.  He contends that increased costs are appropriate because Ms Baker did not accept a Calderbank offer he made to her on 16 December 2011, prior to the hearing in the Family Court.  Ms Baker contends that costs should lie where they fall.

Should costs lie where they fall?

[3]      Ms Stevenson submits that costs should lie where they fall, consistent with the approach taken in the Family Court.  I am required to determine the issue of costs in relation to the appeal.   How costs were dealt with in the Family Court is not relevant to this.

[4]      Costs should be predictable and should follow the event in most cases.  I see no reason to justify departing from this principle in this case.  Mr Lawrence was the successful party on the appeal.  Although he did not succeed on all issues, he was largely successful on the principal issues that were of most significance and occupied most of the hearing time.  In my view, he is entitled to costs on the appeal.

Are increased costs justified?

[5]      Mr  Muir  submits  that  increased  costs  are  justified  in  this  case  because Ms Baker did not accept the Calderbank offer made on 16 December 2011.  This was well  before  the  hearing  in  the  Family  Court  which  did  not  commence  until

6 August 2012.

[6]      Rule 14.6(3)(b)(v) of the High Court Rules provides that the court may order a party to pay increased costs if that party contributed unnecessarily to the time or expense of the proceeding or a step in it by failing, without reasonable justification, to accept an offer of settlement or some other offer to settle or dispose of the proceeding.  “Proceeding” is defined in r 1.3 as “any application to the court for the exercise of the civil jurisdiction of the court other than an interlocutory application”. “Court” is defined as the High Court.  The proceeding, for the purposes of this rule, is the appeal.

[7]      The letter sent on 16 December 2011 may have had relevance for the issue of costs in the Family Court.  However, it has no bearing on the issue of costs for the appeal which was not lodged until 20 December 2012.  I conclude that there is no basis for an award of increased costs.

Should there be a reduction because the appellant was only partially successful?

[8]      Ms Stevenson submits that r 14.7(d) applies and costs should be discounted by 50 per cent because Mr Lawrence succeeded on some issues but not on others. She submits that Mr Lawrence was:

(a)      completely successful on three issues (separation date, order for sale of the Australian property, and maintenance arrears);

(b)partly successful in relation to one issue (the occupation order which was varied rather than set aside); and

(c)      unsuccessful  on  five  issues  (occupation  rental,  reimbursement  in relation to the boarder, maintenance, rates arrears and compensation for sale of personal property).

[9]      It is not appropriate to assess overall success by totalling all issues dealt with on the appeal and calculating how many each party succeeded on wholly or in part.  I set out in [1] of my judgment the key issues to be determined on the appeal.  These were whether the Judge erred in:

(a)       allowing Ms Baker exclusive occupation of the former family home until 1 December 2016;

(b)      ordering the immediate sale of an apartment in Australia; and

(c)       ordering Mr Lawrence to pay spousal maintenance until 25 September

2013.

[10]     Mr Lawrence succeeded on the first two of these issues.  They occupied most of the hearing time.  Ms Baker succeeded on the third issue.

[11]     The only other  important  issue concerned  the correct  date of separation. Mr Lawrence succeeded on this issue and it affected a number of subsidiary issues, including apportionment of post-separation payments.

[12]     There is no doubt that, overall, Mr Lawrence was the successful party.  While I accept that Ms Baker succeeded on some issues, I do not consider that this is a case in which a reduction from scale costs is justified, particularly given that Ms Baker did not abandon her cross-appeal until the hearing.

[13]     I conclude that Mr Lawrence is entitled to costs on the appeal on a 2B basis.

Result

[14]     Ms Baker is ordered to pay Mr Lawrence’s costs on the appeal on a 2B basis.

[15]     I make no order for costs in relation to Ms Baker’s cross-appeal.

M A Gilbert J